Citation Nr: 1414309 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 11-11 727A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the appellant is eligible for VA educational assistance benefits under Chapter 1606, Title 10, of the United States Code (also known as the Montgomery GI Bill for Selected Reserves (MGIB-SR)). ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active service in the National Guard- development is being undertaken to determine a comprehensive list of all such service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 award of education benefits under the Post-9/11-GI Bill program by the Department of Veterans Affairs (VA) Regional Office (RO) Education Center in Atlanta, Georgia. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Educational benefits are available to qualifying members of the Selected Reserve under Chapter 1606, Title 10, United States Code. A determination of an individual's eligibility for Chapter 1606 benefits, as to military service, is to be made by the Armed Forces. 38 C.F.R. § 21.7540(a) (2013). Here, the appellant filed a claim for MGIB-SR educational assistance in 2010. It appears from the record that VA electronically requested information from the Department of Defense (DoD) as to whether the appellant had Chapter 1606 eligibility. After receiving a response that she had no qualifying 6-year contract, the RO denied the claim in June 2010. After receiving notification that she qualified for some education benefits, but she did not qualify for benefits governed by Title 10 U.S.C. Chapter 1606, the appellant filed a notice of disagreement and she perfected her appeal. In these documents, the appellant averred that she had served in the Illinois Army National Guard and was serving in the Florida Army National Guard. She further intimated that in both instances, she served or will serve periods of six years or more. In other words, she has claimed that her service should qualify her for benefits under Chapter 1606 of Title 10 U.S.C. The education file presently contains no enlistment contracts or any other legal documents that would indicate what educational assistance benefits the appellant was eligible for when she enlisted. Also not of record is the Notice of Basic Eligibility (NOBE), DD Form 2384-1, which is issued to military members to certify their entitlement to MGIB-SR benefits. See Department of Defense (DoD) Instruction 1322.17, Montgomery GI Bill-Selected Reserve (MGIB-SR), Encl. 2, E2.1.4 (Nov. 29, 1999). There is no evidence showing that the appellant signed a qualifying six year contract but then failed to complete her initial period of active duty for training, or was not participating satisfactorily in the Selected Reserve, or elected to have her service in the Selected Reserve credited toward establishing eligibility to benefits provided under 38 U.S.C., Chapter 30. 38 C.F.R. § 21. 7540( a)(2)-(4) (2013). Because the above-noted information is missing and since said information may have a bearing as to whether the appellant qualifies (or does not qualify) for additional educational benefits, it is the conclusion of the Board that the claim must be remanded so that the appellant's complete military personnel file may be obtained and included in the claims folder for review. Accordingly, the case is REMANDED for the following action: 1. Request that the National Personnel Records Center (NPRC) or the Defense Finance and Accounting Service (DFAS) verify all periods of the appellant's military service, regardless of whether it was active duty, reserve duty, or national guard service, including when reserve service began and ended, and clearly delineating the periods of active reserve service, active duty for training (ACDUTRA), and inactive duty training (IDT). Reports of retirement points do not provide sufficient information to satisfy the requirements of this remand order. A listing of dates of service and whether within those dates the service can be characterized as active, ACDUTRA, or IDT, is needed. 2. Contact DoD, the Illinois Army National Guard, and the Florida Army National Guard and obtain from all departments copies of all of the appellant's military personnel records. Of particular interest are copies of her service contracts and any educational documents that may have been provided to the appellant at the start of each of her enlistments. The departments should also provide the dates of service along with the units of said service. Once these records have been obtained, the AMC should review the records obtained from DFAS/NPRC versus those obtained from DoD and the States of Florida and Illinois - the purpose of the review is to ensure that all of the appellant's dates of service along with types of service match. All documents obtained should be included in the claims folder for review. 3. If the response is negative and DoD provides no adequate explanation (in view of the written statement by the appellant that suggests a possible six-year contract, a simple response that she has no qualifying six-year contract is not adequate), a request to DoD and/or other appropriate military authority must be made. Additionally, the DoD should be asked to review all of the documents, as well as any information in its own system, and make a determination of the appellant's eligibility for Chapter 1606 benefits. If the appropriate authority determines that the appellant is not eligible for Chapter 1606 benefits, an explanation must be provided, which addresses the evidence submitted by the appellant suggesting that she might be eligible. In addition, DoD (and/or other appropriate military authority) should provide the VA copies of any information/files in its possession used to make the determination. All requests should be documented, as well as any responses, negative or positive, and associated with the claims file. 4. After undertaking any other development deemed appropriate the AOJ should re-adjudicate the issue of entitlement to MGIB educational assistance. If the benefit sought is not granted, the appellant should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).